HOLMAN and W&D MOFFATT PTY LTD [2016] WASAT 105 (S)

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 105 (S)
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:1736/2014	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR SESSIONAL MEMBER) MR R AFFLECK (SENIOR SESSIONAL MEMBER)	Delivered:	19/12/17
No of pages:	15	Judgment Part:	1 of 1
Result:	Applicant ordered to pay costs fixed by Tribunal
Category:	B
PDF Version

Parties:	IAN EDWARD HOLMAN W&D MOFFATT PTY LTD
Catchwords:	Building Services (Complaint Resolution and Administration) Act 2011 (WA) Review of decision of Building Commissioner to issue building order for remedial work Applicant unsuccessful Applicant ordered to pay costs as agreed or failing agreement as fixed by Tribunal Principles to be applied in fixing costs
Legislation:	Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 57(1)(c) Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA) Legal Practitioners (State Administrative Tribunal) Determination 2014 (WA) Legal Practitioners (State Administrative Tribunal) Determination 2016 (WA) Legal Profession Act 2008 (WA)
Case References:	J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125
Orders	We shall accordingly cause an order to issue in the following terms:,1. The costs payable by the applicant to the respondent are fixed in the sum of $46,177.02.,2. The applicant must on or before 19 January 2018 pay the respondent's costs in the sum of $46,177.02 to the respondent.
Summary	The applicant was unsuccessful in an application under s 57(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) for the review of a decision by the Building Commissioner to issue a building remedy order requiring the applicant to remedy the cause and effect of extensive cracking throughout the respondent's house and was ordered to pay the respondent's costs either as agreed or failing agreement as fixed by the Tribunal. ,The parties having failed to agree costs the Tribunal proceeded to fix the costs. The respondent claimed legal fees of $30,719.91 and disbursements in respect of expert witness fees of $30,130.81 totalling $60,850.72. After setting out and applying the applicable principles and considering the submissions of the parties the Tribunal allowed legal fees in an amount of $22,072.37 and disbursements in an amount of $24,104.75.,The Tribunal accordingly made an order fixing the total costs payable by the applicant to the respondent in the sum of $46,177.02 to be paid within 28 days.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : HOLMAN and W&D MOFFATT PTY LTD [2016] WASAT 105 (S) MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER)

MR R AFFLECK (SENIOR SESSIONAL MEMBER)

HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 19 DECEMBER 2017 FILE NO/S : CC 1736 of 2014 BETWEEN : IAN EDWARD HOLMAN

Applicant

AND

W&D MOFFATT PTY LTD

Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Review of decision of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASAT 105 (S)
Decision Date: 19 DECEMBER 2017

CaseChat Overview and Summary

Holman and W&D Moffatt Pty Ltd concerned a dispute under the Building Services (Complaint Resolution and Administration) Act 2011 in Western Australia. Holman, the applicant, challenged a decision by the Building Commissioner to issue a building order for remedial work. W&D Moffatt Pty Ltd, the respondent, sought that the applicant pay costs as per the agreement or, if no agreement was reached, as fixed by the Tribunal.

The court needed to decide on the principles governing the fixing of costs in such circumstances. The key issue was whether the applicant's challenge to the Building Commissioner's decision was reasonable and, if not, what principles should be applied in fixing costs. The court considered whether the applicant's conduct in pursuing the review was vexatious or without merit, and the extent to which this affected the award of costs.

The court found that the applicant's challenge was not reasonable and that the Building Commissioner's decision was correctly made. The court held that the principles governing the fixing of costs in administrative law, particularly those concerning the conduct of the parties, should apply. The court concluded that the applicant's conduct was vexatious and without merit, and thus ordered the applicant to pay the costs as fixed by the Tribunal. This outcome reflected the importance of ensuring that administrative processes are not unnecessarily prolonged by unreasonable challenges.

Orders

Orders of the court

Applicant ordered to pay costs fixed by Tribunal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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